Sunday, December 5, 2021

Police officer takes Commissioner to court for his interdiction

Thembeni Zain Mapini, a police officer based at Gerald Police Station in Francistown has taken the Police Commissioner, Keabetswe Makgophe to court for interdicting him and placing him on half salary. 

The case is before Francistown High Court Judge, Bengbame Sechele.

According to court documents, in July 2013, Mapini was interdicted on half salary after a criminal charge of theft was laid against him. The case was registered at the Francistown Magistrate Court and later withdrawn for lack of sufficient evidence. After the withdrawal of the case, the interdiction was lifted and he was put on full salary and all his emoluments were paid. A disciplinary charge was also laid against him and he was on the 26th of February 2013 put on an interdiction and half salary again.

The Police commissioner is cited as first respondent while the Attorney General is the second respondent.
Prior to the second interdiction, the Commissioner of Police Makgophe had invited the applicant (Mapini) to show cause why he should not be interdicted. The commissioner then went ahead to interdict him in terms of section 13(2) of the Police Act. 
This section reads “Where a police, who is suspended, is charged before a court or a board with a criminal or disciplinary offence, the appointing authority shall interdict him.

The Interdicted officer shall receive portion of his pay not less than half as the appointing authority may determine”
However in his heads of argument, the applicant (Mapini) through his lawyer Tshekiso Tshekiso argues that his interdiction is not at all supported by section 13(2) of the Police Act. He further says that the court is enjoined to fully apply section 26 in its interpretation of section 13(2) of the Police Act
“Section 26 of the Interpretation Act provides as follows “Every enactment shall be deemed to be remedial for the public good and shall receive such fair and liberal constriction according to its true intent and spirit,” Tshekiso argues.
He says in the current case his client had in the past been suspended and subsequently interdicted following accusations of a criminal nature and was subsequently charged with a criminal offence. He said it is common cause that the criminal proceedings were withdrawn and interdiction lifted.
“In our submission an interdiction under section 13(2) cannot be lawful except if at time of interdiction is put in place the officer is on suspension. If there was no suspension or there was a suspension but lapsed, the appointing authority would not be entitled to interdict,” Tshekiso argued.

He further accused the Police Commissioner for abuse of power. Tshekiso further said on account of the conduct of the respondent, the court is enjoined to mark its displeasure and disapproval the award of costs on a punitive scale. He said this is more so that when the applicant was invited to show cause why he should not be interdicted he indicated that he had already been placed on interdiction and could not lawfully be interdicted again based on the same facts, a fact which the Police Commissioner ignored.

“Had the Commissioner alluded to this fact and genuinely assessed it, he would have realized that it would be unlawful to levy an interdiction against the applicant based on the same set of facts, which he had been placed on interdiction before,” he said in the heads of argument
Tshekiso said the decision to interdict on half salary is clearly reviewable and must be set aside with costs on attorney and own client scale. He said Makgophe failed to provide sound reasons to support the decision to place the applicant on interdiction as had been used to interdict before.
On the other hand the respondent represented by Idah Joel from the Attorney General submits in the heads of arguments that the Police Commissioner did not act illegally and contrary to section 13(2) of the Police Act. She said it was not mandatory for the interdiction to be preceded by a suspension as the applicant submits.

“The argument by the applicant is tantamount to interpreting these provisions to be suggesting that all interdictions must first be preceded by a suspension.

This argument ignores that the primary objective of a suspension is to gather (investigate) facts or evidence to support a criminal or disciplinary process. Not every such process will require preliminary investigations,” she submits in part of her heads of arguments,
Joel said where there is a prima facie situation suggesting commission of a criminal misdemeanor; the culprit may be charged and interdicted right away without any need for a suspension.
Ruling will be delivered on the 24 of January 2015.

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